$______ VERDICT - MUNICIPAL LIABILITY - FINRA - FINRA VICTORY FOR INVESTOR AGAINST MORGAN STANLEY - LOSS OF STOCK VALUE

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COMMENTARY
The plaintiff was able to command a substantial recovery in this
death action in which there was no evidence of post-accident con-
scious pain and suffering, and in this case in which the decedent
made no actual financial contributions to the households of her five
adult children. Two of the adult children testified in discovery and
their EBTs reflected that in addition to providing babysitting ser-
vices, the decedent was the “Matriarch” of the family whose guid-
ance was of an extremely high quality, and who was the principal
provider of guidance during periods of stress. In this regard, the
plaintiff’s economic proofs reflected pecuniary loss of approxi-
mately $860,000.
Finally, although there was no evidence of conscious pain and suf-
fering after impact, the plaintiff would have also argued that the
jury should consider that the decedent experienced a brief period of
pre-impact terror, stressing that it was very likely that the decedent
had seen the defendant and that when she realized her wasn’t go-
ing to stop moments before impact, the fear at the end of her life
had to be very severe.
DEFENDANT’S VERDICT – PRODUCT LIABILITY – ASBESTOS – VERDICT OVERTURNED
IN CASE AGAINST GASKET MAKERS – MESOTHELIOMA AND DEATH.
New York County, NY
In this action, a man sued makers of asbestos-
containing products after developing
mesothelioma. The case received a favorable jury
verdict that was later overturned upon appeal.
The result of that appeal was later upheld by the
New York Court of Appeals.
From 1961 to 2009, the decedent Arthur J. worked for
Orange & Rockland Utilities as a high line crew mem-
ber, courier, mechanic and foreman. His duties in-
cluded the servicing of Ford vehicles, resulting in his
being exposed on a daily basis to dust allegedly
laden with asbestos. The alleged exposure came as
part of his handling of new and used brakes,
clutches, and manifold and engine gaskets worked
on by himself and other mechanics in the surround-
ing work area. For the first 25 of those years, the plain-
tiff worked without a respirator. In June 2012, the
decedent was diagnosed with mesothelioma, a fatal
cancer linked with asbestos exposure.
In 2012, the plaintiff filed suit in the New York County
Supreme Court against the defendants Ford Motor
Company, as well as the manufacturers of many as-
bestos-containing products. The plaintiff asserted
claims for product liability, asserting that failure to
warn of the hazards associated with their products re-
sulted in his fatal cancer. The plaintiff perished of the
disease on March 16, 2014, with this action contin-
ued by his widow.
The trial proceeded to verdict only against Ford. At
trial, the plaintiff brought expert testimony from two
experts who testified to the link between the defen-
dant Ford’s products and his fatal cancer. Both plain-
tiffs asserted that asbestos in Ford’s friction products
caused the defendant’s mesothelioma.
The jury found for the plaintiff and awarded $11 mil-
lion in damages, including $8 million to decedent’s
estate for pain and suffering and $3 million to his wife
for her loss. Ford was found liable for 49 percent of
that liability under the jury’s decision. The remaining
51 percent was assigned to Orange & Rockland.
The defendant moved to set aside the verdict on the
grounds that the evidence was legally insufficient to
support the verdict. That motion was granted by the
trial court and affirmed by the Appellate Division, First
Department.
REFERENCE
MaryJuni,etal.vs.A.O.SmithWaterProducts,Co.,et
al. Index no. 190315/12; Judge Sherry Klein Heitler,
11-27-18.
Attorney for plaintiff: Pierre Ratzki of Weitz &
Luxenberg, PC in New York, NY. Attorney for
defendant: Oded Burger of Aaronson Rappaport
Feinstein & Deutsch, LLP in New York, NY.
COMMENTARY
The New York Court of Appeals cited the lack of evidence in its de-
cision to uphold the lower court’s decision to throw out the verdict.
The court found that the evidence was insufficient as a matter of
law pursuant to the standards set forth in “Parker v. Mobil Oil”. In
that case, a service station employee linked his leukemia to expo-
sure to benzene within the gasoline. In 2016, the Court of Appeals
ruled that the plaintiffs needed to show evidence that they had
been exposed to levels of toxin that could have caused the disease.
Respecting this case, the court found that both plaintiff’s experts
undermined their causation assertions through concessions made
on cross.
In the case of the plaintiff’s internist, the court drew attention to
the expert’s assertion that decedent’s “Cumulative exposures to as-
bestos caused his mesothelioma”, only to later admit that there
was no measurement of his level of exposure. Further, the expert
testified that the visibility of the dust itself indicated the magnitude
of the exposure at levels capable of causing the disease. The court
found that this was undermined when on cross-examination she
conceded that studies have shown that more than 99 percent of the
debris from brake wear is not comprised of asbestos fibers. In addi-
tion, the expert acknowledged that most chrysotile fibers in brake
pads undergo a transformation during the braking process, and
she did not know whether the fibers from the brake debris to which
decedent was exposed were still active.
Respecting the plaintiff’s other expert, the court pointed to his as-
sertion that the “Chrysotile in friction products, if it becomes air-
borne and inhaled, can cause malignant mesothelioma”. The
expert acknowledged on cross-examination that 21 of 22 epidemio-
logical studies that addressed asbestos exposure to mechanics
working on friction products found no increased risk of mesotheli-
oma. He further acknowledged that chrysotile has a curly and flexi-
ble structure, with shorter fibers, dissolves in the lungs, to an
extent, and can clear the lungs through macrophages and
translocation, and that when asbestos fibers in braking equipment
are mixed with certain resins during manufacturing, they would not
be respirable. Finally, the expert conceded that the high heat gen-
erated within brake drums when the brakes are applied converted
most of the brake lining into another mineral, and that only 1 per-
cent of the dust emitted from brake drums was comprised of asbes-
tos.
8 SUMMARIES WITH TRIAL ANALYSIS
Volume 36, Issue 2, February 2019 Subscribe Now

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